Robert: Good morning this is Robert Chisholm from Chisholm Chisholm and Kilpatrick
With me today is
Layi: Layi Oduyingbo
Robert: And today we're gonna to talk about TDIU.
Robert: So Layi what is TDIU?
Layi: TDIU is entitlement to a total disability rating based on individual unemployability.
Basically what that means is when a veteran can show that service-connected limitations
preclude them from gainful employment, they may be entitled to a 100 percent rating.
Robert: So if the veteran has a rating that's less than 100 percent and his or her service-connected
disabilities prevent them from working they can receive compensation at the 100 percent rate?
Layi: That's correct and that's the benefit of being able to show entitlement to TDIU.
Robert: So how does one go about doing that as a practical matter?
Layi: So to be eligible for entitlement to TDIU you first have to show whether you meet
the schedular requirements.
Robert: Okay and what are the schedular requirements?
Layi: So Section 4.16 (a) involves whether a veteran has one service-connected condition
rated at 60 percent or if there's a combination of service-connected conditions that combines
to 70 percent where at least one of the service-connected conditions is at 40 percent.
Robert: So this is a little bit confusing.
So bear with me here.
So a veteran under 38 CFR 4.16(a) could show they've got one service-connected condition
let's say a back condition rated at 60 percent and that back condition prevents them from
working they'd be eligible?
Layi: That's correct.
Robert: Or they could have a combination of disabilities where at least one is 40 percent and
the combined rating is 70 percent?
Layi: That's correct.
Robert: Okay.
Robert: What if a veteran doesn't meet those minimum qualifications?
Say a veteran has a 40 percent rating only for the back condition can that veteran also be eligible
for TDIU?
Layi: Yes that veteran can be eligible.
What they would have to show is entitlement under 4.16(b) which is known as entitlement
to TDIU on an extra-schedular basis.
That just involves a showing of whether the veteran's service-connected disabilities preclude him
or her from being employable.
The first - but that first determination is made by the director of compensation because it's
on an extra-schedular basis.
Robert: So it sounds like they have another step.
The veterans who don't meet the minimum qualifications have another step to go through.
Layi: That's correct.
If you can show eligibility under 4.16(a) that's definitely helpful and avoids you having
to first have the claim decided by the director.
Robert: So one of the things I find confusing is many of our clients receive social security
disability benefits.
Does that automatically entitle them to a TDIU rating?
Layi: No.
Social Security evidence are only can be helpful in part of a claim for VA purposes.
However Social Security and VA compensation are separate and that would not automatically
show entitlement to TDIU even if the Social Security disability information is based on
the same service-connected disabilities.
Robert: So one could receive Social Security disability and still be denied TDIU benefits?
Layi: That's correct.
Robert: And one could receive TDIU benefits and still be denied Social Security benefits.
Layi: That's correct.
They're completely or entirely separate.
Robert: Can we talk a little bit about what evidence a veteran would want to submit in
order to win a claim for TDIU?
Layi: Yes.
So a veteran could submit lay evidence or reports of by himself or buddies showing that
the limitations of their disability.
So for instance if a veteran is service-connected for their back and they submit evidence showing
that their service-connected back disability precludes them from sitting standing or
walking for certain periods of time that evidence is relevant to an ultimate TDIU determination.
Robert: Is there a specific form that veterans are required to use in order to start the
process for a TDIU award?
Layi: Yes.
They submit what's called the VA Form 21-8940 that's the request for TDIU or the TDIU Application.
Robert: Okay.
And on that form it request informations about their work history?
Layi: That's correct.
Robert: About their education
And about what conditions prevent them from working.
Layi: That's correct.
Robert: So once they complete that form what other evidence and here I'm thinking about
any kind of expert evidence in the broad sense that the VA would obtain or maybe a veteran
would obtain for themselves to help win that claim.
Layi: So a veteran can also submit a vocational expert opinion.
Vocational experts are experts in employability the factors involved that would render a person
unemployable what would be required of gainful employment things of that nature.
Robert: Does the VA also obtain medical opinions from doctors on this particular subject?
Layi: Yes the VA certainly does.
And medical evidence is relevant to the issue of unemployability because you can show the
limitations that may be caused by certain conditions but it also is separate from a
vocational opinion where the expert is an expert in the aspects of employment.
Robert: Okay I have a couple of sort of technical questions now if I could.
Layi: Sure.
Robert: Let's suppose a veteran retired say 10 years ago retired from their job.
Now let's suppose that after retiring the veteran's Post Traumatic Stress Disorder worsened
and now prevents that veteran from working even though they didn't retire because of
their PTSD they retired because of age
is a veteran in that situation still eligible for TDIU?
Layi: Yes that veteran would still be eligible.
The determination is not based on age or the reason for leaving past employment what it's
based on is whether the limitations imposed by that service-connected disability precludes
the veteran now from securing or following a gainful occupation.
Robert: All right
So at the end of the day it doesn't matter that the veteran retired or why they left
their employment.
The question is does the - do the service-connected conditions presently prevent the veteran from working?
Layi: That's correct.
Robert: Are there situations where a veteran can do some work and let's say they can't
do the full scope of what they did before but they're earning some wages but it's below
the poverty level.
Are those veterans eligible for TDIU?
Layi: Yes.
Even if a veteran's working they may still be eligible for TDIU.
TDIU is based on whether the veteran cannot do substantially gainful employment and the
regulation that finds marginal employment as one factor being the veteran not earning-
veteran's income not exceeding the poverty threshold for one person.
So that would be a marginal employment situation.
Robert: So if a veteran can do only marginal employment that means they can't do substantially
gainful employment and they would be eligible for TDIU.
Layi: That's correct.
Robert: What about a situation where a veteran is working in what I'll call like a family business
or protected workshop what happens to those veterans?
Layi: So that would also be considered marginal employment.
So if a veteran is receiving certain accommodations that normally would not be in a workplace
working for a family business or what is called a sheltered workshop those veterans are still
eligible to TDIU.
Robert: We handle cases - our law firm handles cases both at the agency level that is before
the regional office and the Board and also in court.
Layi: That's correct.
Robert: Okay.
And we've won cases both under 4.16(a) at the agency level and under 4.16(b).
Layi: Yes.
Robert: Okay.
And we've also litigated I'm using that word-- the official word we've litigated these cases
in court as well.
Layi: That's correct.
Robert: And some of the issues that keep occurring in the court cases are certain definitional
problems that we've encountered.
Layi: Yes certainly.
The TDIU issue comes up a lot in court cases and our main problem in those cases is what
the Board's denial is based on.
So for instance they may deny a veteran entitlement to TDIU because they determined that the veteran
could do sedentary work or substantially gainful sedentary work.
The problem with that is when the Board doesn't define what would be required of sedentary
work.
Robert: Okay.
And so those cases should be reviewed for possible appeal from the Board to the court?
Layi: That's correct.
Robert: Okay.
Robert: The other issue that seems to be occurring is what is marginal employment?
What is protected work environment as well?
We've seen a number of those cases.
Layi: That's correct.
While we had some examples of what may be a protected work environment such as a family
business or a sheltered workshop within the regulation there's no definition provided
by VA.
That actually came up in a recent court case Cantrell v. Shulkin where the court encouraged
VA to provide a definition because there was no way of basically determining what factors
the Board relied on and whether it was fair to rely on certain factors without there being
a definition or at least a set of factors for what a protected work environment would entail.
Robert: So to sort of sum up today if the veteran has a 60 percent rating or a combined 70 percent
rating and can't work due to those service-connected conditions they should fill out
that Form 21-8940?
Layi: That's correct.
That's the VA Form 21-8940 which is the TDIU application to get their request started.
Robert: And even if the veteran doesn't meet those requirements but say has like a 50 percent
for headaches service-connected disability or 40 percent for back condition those veterans
if they can't work due to that service-connected condition would also be eligible for VA benefits?
Layi: That's correct.
Because the regulation has what's entitlement to TDIU under section 4.16(b) or a second
way of entitlement in TDIU.
They should seek that.
Robert: Well Layi thank you for joining me this morning and talking about TDIU.
Layi: Thank you so much.
It's been my pleasure.
Robert: This is Robert Chisholm from Chisholm Chisholm and Kilpatrick and
Layi: Layi Oduyingbo.
Robert: Thank you very much.